6.5Putative Fathers/Alleged Biological Fathers/Natural Fathers and Child Protective Proceedings

A.Putative Father

A putative father is “a man who is alleged to be the biological father of a child who has no father as defined in MCR 3.903(A)(7).” MCR 3.903(A)(24). A court may determine at any time during child protective proceedings that the child has no legal father. MCR 3.921(D). If, at any time during a child protective proceeding, the court determines that the child has no father as father is defined under MCR 3.903(A)(7), the court may inquire into the identity and location of the child’s putative, or natural, father. MCR 3.921(D)(1).

Termination of a husband’s parental rights under the Juvenile Code to a child born or conceived during his marriage to the child’s mother, making him the child’s presumed father, is not a determination that a child is not the issue of the marriage and that the husband-father is no longer the child’s father, only that the husband-father’s parental rights related to the child were terminated. In re CAW, 469 Mich 192, 199 (2003). Because termination of a presumed father’s parental rights alone does not mean that the child involved has no legal father, such a determination does not confer on a putative father standing to participate in child protective proceedings involving the child. Id.

B. Required Notice

If, after taking initial testimony on the identity and address of the natural father, the court finds probable cause to believe that an identifiable man is the child’s natural father, the court must “direct that notice be served on that person in any manner reasonably calculated to provide notice to the putative father[1] . . . .”2 MCR 3.921(D)(1).3 

Notice to the putative father may be given by publication “if his whereabouts remain unknown after diligent inquiry.” Id. “Any notice by publication must not include the name of the putative father.” Id. If the identity of the child’s natural father is unknown, the court must direct that notice by publication be given to the unknown father. Id.

C.Contents of Notice

Notice that a hearing will be held to identify a child’s father must include all of the following information:

(1) the child’s name (if known).

(2) the name of the child’s mother (if known).

(3) the child’s birthplace and birthdate (if known).

(4) that a petition has been filed with the court alleging that the child has been harmed or has not been properly cared for.

(5) the time and location of the hearing at which the natural father is to appear to express any interest he has in the child.

(6) a statement informing the natural father that his failure to appear for the hearing will constitute:

(a) a denial of his interest in the child;

(b) a waiver of his right to be given notice of all subsequent hearings; and

(c) a waiver of his right to an appointed attorney.

(7) a statement informing the natural father that his failure to appear for the hearing could result in the termination of his parental rights. MCR 3.921(D)(1)(a)-(d).

D.Hearing

After satisfying the notice requirements in MCR 3.921(D)(1), the court may conduct a hearing and determine,4 according to MCR 3.921(D)(2)(a)-(d), and as appropriate, that:

(1) the putative father was properly served with notice of the hearing, that is, in a manner the court finds was reasonably calculated to provide notice to the putative father.

(2) a preponderance of the evidence establishes that the putative father is the child’s natural father and that justice requires he be allowed 14 days to establish his paternity as provided in MCR 3.903(A)(7).

Note: The 14-day period may be extended for good cause shown. MCR 3.921(D)(2)(b). Unless good cause for delay is shown, the court does not have to allow a putative father to perfect paternity outside of the time set by the court. In re LE, 278 Mich App 1, 21 (2008), abrogated on other grounds by In re Sanders, 495 Mich 394 (2014).5 See In re IM Long, 326 Mich App 455, 465 (2018).

(3) there is probable cause to believe that another identifiable man is the child’s natural father, and if so, the other identifiable man must receive notice as provided in MCR 3.921(D).

(4) the identity of the child’s natural father cannot be determined after a diligent search, in which case the court may proceed without giving further notice and without appointing an attorney for the unidentified person.

If the child’s natural father has been given proper notice and fails to appear for the hearing, or appears for the hearing but fails to establish his paternity of the child within the time allowed by the court, the court may find that the natural father has waived all rights to further notice, including notice of the termination of his parental rights and notice of his right to an attorney. MCR 3.921(D)(3)(a)-(b).

Note: If a putative father, whose whereabouts are unknown, fails to appear at the hearing after notice was given “by publication or otherwise,” the court is not required to give further notice by publication of any subsequent hearings, unless the subsequent hearing concerns the termination of parental rights. MCR 3.921(E).

1   See SCAO form JC 53, Notice to Putative Father. See also the DHHS Children’s Foster Care Manual (FOM), Court Review, FOM 722-10.

2    See SCAO form JC 53, Notice to Putative Father.

3   MCR 2.004 sets forth the notice requirements that apply when a putative father is incarcerated. See Section 5.2(C) for more information.

4   See SCAO form JC 106, Findings Following Putative Father Hearing.

5    For more information on the precedential value of an opinion with negative subsequent history, see our note.